On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-886-96.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Yannotti.
Plaintiff appeals from provisions of an order entered by the Family Part on September 10, 2010, denying his motion to terminate alimony and for an award of counsel fees and costs. We reverse in part, affirm in part, and remand the matter to the trial court for further proceedings on the motion to terminate alimony.
The parties were married on September 1, 1973. Three children were born of the marriage. A dual Final Judgment of Divorce dated July 29, 1997, dissolved the marriage. The judgment incorporated the parties' Property Settlement Agreement (PSA), which resolved numerous issues including equitable distribution, child support and alimony. Among other things, the PSA required plaintiff to pay defendant permanent alimony of $110 per week. The PSA also required plaintiff to maintain insurance on his life to ensure payment of child support and alimony.
At the time of the divorce, plaintiff was working for the United States Postal Service (USPS) and earning $47,000 per year. Defendant was cleaning houses and working part-time as a waitress. In his case information statement, plaintiff stated that defendant was earning $26,000 per year; however, defendant maintained that her earnings were $8400 per year.
On August 12, 2010, plaintiff filed a motion in the trial court to terminate his alimony and life insurance obligations, and for an award of counsel fees and costs. In support of his motion, plaintiff submitted a certification in which he stated that he was still working for the USPS and earned $49,000 in 2009. Plaintiff also stated that defendant obtained a job with a State administrative agency in 2000, and an internet search revealed that she earned $49,305 in 2010.
Plaintiff argued that the court should terminate his alimony obligation because defendant's earnings were comparable to his. Plaintiff additionally argued that his life insurance obligations should be terminated because the children were emancipated and defendant's earnings were sufficient to warrant termination of alimony. In addition, plaintiff asserted that the court should award him counsel fees and costs because defendant had rebuffed his attempts to revolve these issues without court intervention. Defendant did not file a response to the motion.
On September 10, 2010, the trial court filed a written decision, in which it concluded that plaintiff's motion for termination of his life insurance obligation to secure payment of child support should be granted but all of the other relief requested should be denied. The court found that the increase in defendant's earnings was not a significant change in her circumstances that warranted termination of alimony or the life insurance obligation related to those payments. The court entered an order dated September 10, 2010, memorializing its decision.
On appeal, plaintiff argues that the trial court erred by:
1) failing to terminate his alimony obligation based on a significant change in defendant's circumstances; 2) failing to grant his request for financial discovery; 3) erroneously interpreting the PSA; and 4) denying his motion for an award of counsel fees and costs.
We turn first to plaintiff's contention that the court should have ordered the termination of his alimony obligation. An alimony award is intended "to assist the supported spouse in achieving a lifestyle that is reasonably comparable" to the standard of living enjoyed during the marriage. Crews v. Crews, 164 N.J. 11, 16 (2000). Even when the parties have entered into an agreement that requires one party to pay permanent alimony to the other, the court retains the authority to review and modify such an agreement "based upon a showing of changed circumstances." Miller v. Miller, 160 N.J. 408, 419 (1999) (citing Lepis v. Lepis, 83 N.J. 139, 145 (1980)).
The party seeking modification of an agreement to pay alimony bears the burden of making a prima facie showing that the circumstances have changed. Id. at 420. If such a showing is made, the court may order the exchange of financial discovery and hold an evidentiary hearing to resolve disputed issues of fact material to the decision of whether the agreement should be ...